Butler v. Houma Ice Co.

• Decision Date: 23 May 1941
• Docket Number: 2242.
• Citation: 2 So.2d 286
• Court: Court of Appeal of Louisiana — District of US
• Parties: BUTLER v. HOUMA ICE CO. ET AL.

2 So.2d 286

BUTLER v. HOUMA ICE CO. ET AL.

No. 2242.

Court of Appeals of Louisiana, First Circuit

May 23, 1941

St Clair Adams & Son, of New Orleans, and Pettigrew &amp Duval, of Houma, for appellant.

Elton A. Darsey, of Houma, for appellees.

DORE, Judge.

An accident between an automobile belonging to Henry Butler and a truck belonging to the Houma Ice Company, operated by one of its employees, within the scope of his employment, at about eight o'clock on the morning of July 5, 1939, at a point about 16 miles west of the City of Houma on U. S. Highway 90, gave rise to this suit. The defendants are the Houma Ice Company and the individual members thereof and its insurance carrier Massachusetts Bonding & Insurance Company.

Plaintiff alleges that during the morning of July 5, 1939, he was driving west on U. S. Highway 90 at the rate of about 35 or 40 miles per hour; that the driver of defendant company's truck had negligently parked the truck on the left hand side of the road, facing in the same direction in which he was driving; that just before he reached the place where the said truck was parked, and when he was about 20 or 25 feet therefrom, the driver thereof, suddenly and without warning started said truck from this place and made a right hand turn to go upon the highway in the path of his car which was travelling on the right hand side of the road, and after gaining said right lane of travel, the truck driver suddenly stopped the truck in the path of his car; that just as soon as he observed the moving of the truck, he blew his horn applied his brakes and did all he could to avoid a collision, whereupon he ran into the rear of the truck, causing the damage complained of. He further avers that there was no obstruction to prevent the truck driver from seeing his approach; that the truck driver did see or should have seen him and should have awaited the plaintiff's passing before entering the highway; that the truck driver was grossly negligent in entering the said highway without looking in both directions; in not keeping a proper lookout; in not signaling his intention to enter upon the highway, and in subsequently stopping without giving a signal and leaving a clearance of 15 feet on the highway; that but for these acts of negligence there would have been no collision.

The damages claimed are for the loss of the value of his car; for medical expenses, for bus tickets for himself and wife, for mental and physical pain and suffering, and for loss of time; the total sum claimed therefor being $1,107.10.

Defendants admit the accident and that the driver of the ice truck was acting withing the scope of his employment but deny that the driver of the truck negligently parked the truck on the south shoulder of the road and then suddenly started it and ran into the highway in front of plaintiff's car, and deny that the truck driver stopped the truck in front of plaintiff's car on the right side of the road. They admit that there were no obstructions on the highway to prevent the driver from seeing the automobile, likewise nothing to prevent plaintiff from seeing the truck. Defendants further deny any negligence on the part of the truck driver, and, in the alternative, in the event it should be found that the truck driver was guilty of any negligence, they allege that the plaintiff was guilty of contributory negligence in driving at an excessive rate of speed; in not keeping a proper lookout ahead; in not having his car under proper control; in not making a proper effort to stop when he saw or should have seen the truck ahead of him; in having defective brakes; and in running into the truck after it had entered on the highway and had travelled on its right side of the road for some 75 to 100 feet in front of plaintiff.

Upon these issues, judgment was rendered in favor of the plaintiff in the sum of $282.10; both defendants have appealed; plaintiff has answered the appeal asking that the award be increased to $820.

The question presented is purely one of fact. The lower court has given lengthy reasons for judgment in which he closely analyzed the testimony of all the witnesses in the case and the issues presented. Unless we can find manifest error, we must affirm the judgment.

In this court it appears from the brief of the defendants that they concede the negligence of the truck driver and rely solely upon their plea of contributory negligence of the plaintiff to bar his recovery. For this statement, we quote from page 4 of defendant's brief as...